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July 20, 2010

Kohl votes to confirm Kagan...while criticizing process

Wisconsin Sen. Herb Kohl criticized the process of vetting Supreme Court nominees before voting today to approve Solicitor General Elena Kagan's nomination by President Obama. The vote came in the Senate Judiciary Committee, where Kohl is second in seniority among Democrats.

Here are excerpts from Kohl's remarks, delivered prior to the committee vote:

"I am pleased to support General Kagan’s nomination to the Supreme Court. Her confirmation will be a milestone that we can all be proud of -- for the first time in history three women will be serving on the Supreme Court at one time.

"General Kagan ... impressed us with her sharp mind, keen intellect, and comprehensive knowledge of the Constitution and the law...

"...At times ... Solicitor General Kagan seemed to be somewhat more candid than previous nominees... But like so many nominees before her, General Kagan often retreated to the generalities and platitudes that she once criticized. I am pleased that she rejected the analogy that Supreme Court Justices are like umpires, simply calling balls and strikes. Instead, she did acknowledge that each Justice’s legal judgment determines the outcome of close cases. Yet her opaque and limited answers to questions about who she is and her views on important issues left us with little insight into what informs her unique legal judgment and how it will impact those close cases.

"I think it was proper for her to decline to comment on potential cases and hypothetical facts. But General Kagan’s refusal to “grade cases” extended far beyond her obligation to avoid prejudging matters that might come before her. Too often we heard detailed explanations about the state of the law, but learned little more about what weight she would give to relevant precedent. The substance of her answers was so general at times, that it would be difficult to distinguish her answers from those of any other nominee.

"I say this not to chastise Solicitor General Kagan, whom I greatly respect. The problem I have outlined is inherent in our hearing process, not in General Kagan. All nominees in the last few decades have answered questions with eloquent words and collegial conversations, but when it comes to their substantive views they say the bare minimum necessary to get confirmed.

"...The confirmation process demands more than that. This is the public’s only opportunity to hear from General Kagan more than a recitation of her resume and her knowledge of the law. In my opinion she made small in-roads, but we still have a long way to go in meeting the high standard to which we should hold Supreme Court nominees.

"Nonetheless, I am voting for General Kagan because she is unquestionably qualified, has a record of being a principled, consensus-building lawyer, and because I believe her judicial philosophy is within the mainstream of our country’s legal thought..."